RI Assoc. of Realtors v. Att'y General for RI

• Decision Date: 04 November 1999
• Docket Number: No. 99-1812,99-1812
• Citation: 199 F.3d 26
• Parties: (1st Cir. 1999) RHODE ISLAND ASSOCIATION OF REALTORS, INC., Plaintiff, Appellee, v. SHELDON WHITEHOUSE, ATTORNEY GENERAL FOR THE STATE OF RHODE ISLAND, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 26

199 F.3d 26 (1st Cir. 1999)

RHODE ISLAND ASSOCIATION OF REALTORS, INC., Plaintiff, Appellee, v. SHELDON WHITEHOUSE, ATTORNEY GENERAL FOR THE STATE OF RHODE ISLAND, Defendant, Appellant.

No. 99-1812.

United States Court of Appeals, for the First Circuit.

Heard Nov. 4, 1999.

Decided December 14, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. Ernest C. Torres, U.S. District Judge. [Copyrighted Material Omitted] Rebecca Tedford Partington, Asst. Attorney General, with whom Brenda A. Doyle, Special Asst. Attorney General, was on brief, for appellant.

Mark W. Freel, American Civil Liberties Union, Rhode Island Affiliate, for appellee.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge.

SELYA, Circuit Judge.

Certain public records in Rhode Island are available upon request but come with strings attached. This case concerns one of those strings: the prohibition on using records so obtained for commercial solicitation. See R.I. Gen. Laws § 38-2-6. Responding to a petition for declaratory and injunctive relief filed by the Rhode Island Association of Realtors (the Association), the district court granted the requested remedies, ruling that the operation of the statute abridged the Association's right to free expression. See Rhode Island Ass'n of Realtors v. Whitehouse, 51 F. Supp. 2d 107 (D.R.I. 1999) [RIAR]. The Rhode Island Attorney General appeals, insisting that the Association lacks standing to challenge the law. We affirm.

I. BACKGROUND

In accordance with the conventional summary judgment standard, we limn the facts in the light most favorable to the Attorney General, indulging all reasonable inferences in his favor. See Coyne v. Taber Partners I, 53 F.3d 454, 456 (1st Cir. 1995).

The Association is a trade group that represents licensed real estate agents and brokers. Pursuant to the Access to Public Records Act, R.I. Gen. Laws §§ 38-2-1 to -15 (the Act), the Association asked for and obtained from the Department of Business Regulation (DBR) information concerning the identities of persons to whom real estate licenses recently had been issued. The Association wishes to use these data to recruit new dues-paying members but thus far has refrained from soliciting the listed license-holders because it fears prosecution under R.I. Gen. Laws § 38-2-6.

First enacted in 1979, the statute provides:

Commercial use of public records. -- No person or business entity shall use information obtained from public records pursuant to this chapter to solicit for commercial purposes or to obtain a commercial advantage over the party furnishing that information to the public body. Anyone who knowingly and willfully violates the provision of this section shall, in addition to any civil liability, be punished by a fine of not more than five hundred dollars ($500) and/or imprisonment for no longer than one year.

R.I. Gen. Laws § 38-2-6. When the Association requested the license information, DBR made it aware of potential criminal penalties under the Act. Although no person has ever been charged criminally under section 38-2-6, the Attorney General has never disclaimed it, and a related provision, section 38-2-8, requires the Attorney General to investigate and, when appropriate, to prosecute violations.

As a matter of longstanding policy, the Attorney General does not issue advisory opinions to private parties, so that option was not open to the Association. The Attorney General sometimes furnishes such opinions to public entities on questions of state law, see id. § 42-9-6, but he has never promulgated an opinion anent the scope of section 38-2-6. He has, however, issued at least one opinion to a state college touching upon the subject matter. See R.I. Att'y Gen. Unofficial Op. No. PR94-06 (Apr. 21, 1994) (discussed infra).

Reluctant either to execute or to abandon its contemplated deployment of the information gleaned from DBR, and seeing no other way of resolving the issue, the Association sued. Invoking 42 U.S.C. § 1983 and the First and Fourteenth Amendments, it asked the federal district court to declare section 38-2-6 unconstitutional as violative of the free-speech rights of the Association, its members, and Rhode Island real estate licensees in general, and to enjoin the then-Attorney General, Jeffrey Pine, from enforcing the ban on commercial solicitation.

Attorney General Pine moved to dismiss the complaint. He contended that it showed neither a sufficiently definite plan to engage in conduct that would transgress section 38-2-6 nor a sufficiently imminent threat of prosecution. The Association objected to this motion and in due course filed a cross-motion for summary judgment. In opposition, the Attorney General confined his argument to the threshold question of justiciability: he embellished both of the contentions delineated in the motion to dismiss, suggested that the court should defer to his interpretation of the challenged law, and alleged a lack of state action sufficient to support a claim under 42 U.S.C. § 1983. The Association filed a rejoinder, which included a supporting affidavit.

The matter lay fallow for several months. Attorney General Pine did not seek reelection. In November 1998, the voters chose Sheldon Whitehouse to succeed him. Whitehouse took office on January 5, 1999, and was substituted as the named defendant in this suit. See Fed. R. Civ. P. 25(d)(1). In June, the district court granted the Association's motion for summary judgment. See RIAR, 51 F. Supp. 2d at 114. This appeal followed. Up to that point, Attorney General Whitehouse had not expressed an opinion as to either the constitutionality of section 38-2-6 or its applicability to the Association's proposed course of action.

II. ANALYSIS

On appeal, the Attorney General does not challenge the district court's determination that section 38-2-6 is unconstitutional to the extent that it "prohibits the use of public information 'to solicit for commercial purposes.'" RIAR, 51 F. Supp. 2d at 114 (quoting statute).¹ We must therefore accept that determination unless we find that the Attorney General is correct in his thesis that the district court should not have heard the case.

The Attorney General grounds this position mainly on a theory that the Association lacked "standing" to pursue its quest for declaratory and injunctive relief. But he uses this term loosely, in a way that brings to mind a panoply of related concepts: standing, ripeness, and mootness. We address these justiciability concerns separately and then treat the Attorney General's assertion that the lower court lacked subject-matter jurisdiction because the operation of section 38-2-6 does not involve state action. Consistent with the summary judgment standard, we afford plenary review. See Coyne, 53 F.3d at 456.

A. Standing.

Inasmuch as the Attorney General couches his justiciability concerns in terms of standing, we start there. Like all justiciability doctrines, standing is a necessary concomitant to the court's power to adjudicate a case. See Warth v. Seldin, 422 U.S. 490, 498 (1975); United States v. AVX Corp., 962 F.2d 108, 113 (1st Cir. 1992). Despite its importance, the doctrine remains "a morass of imprecision." New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir. 1996). We know, however, that standing encompasses both "constitutional requirements and prudential considerations," Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982), and that the former derive from Article III's admonition that a federal court may decide only actual "Cases" and "Controversies," U.S. Const. art. III, § 2. Here, the Attorney General frames his objection in constitutional terms and, in all events, it is unnecessary to address separately prudential considerations. See Berner v. Delahanty, 129 F.3d 20, 24 (1st Cir. 1997) ("[A] realistic risk of future exposure to [a] challenged policy . . . is sufficient to satisfy not only the standing requirements that Article III imposes, but also the prudential concerns that sometimes trouble courts."), cert. denied, 523 U.S. 1023 (1998).

The burden of establishing standing rests with the party who invokes federal jurisdiction. See Bennett v. Spear, 520 U.S. 154, 167-68 (1997). Accordingly, the Association must show that (1) it personally has suffered some actual or threatened injury, (2) the injury fairly can be traced to the challenged conduct, and (3) a favorable decision likely will redress it. See Valley Forge, 454 U.S. at 472; Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 36 (1st Cir. 1993).

Neither the second nor the third of these showings has independent significance in this instance. To the extent that the Association had suffered a cognizable injury at the time of filing -- a matter which we discuss below -- that injury can be traced directly to the looming enforcement of section 38-2-6 and can be fully redressed by declaratory and injunctive relief. See New Hampshire Right to Life, 99 F.3d at 13. Thus, the lens of our inquiry narrows to the existence vel non of an actual or threatened injury.

Although inquiries of this sort are both context-contingent and situation-specific, the case law furnishes some guideposts. Generally speaking, a "conflict between state officials empowered to enforce a law and private parties subject to prosecution under that law is a classic 'case' or 'controversy' within the meaning of Art. III.'" Diamond v. Charles, 476 U.S. 54, 64 (1986). Moreover, a private party need not "first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459 (1974). Because it ordinarily will be too late to obtain a federal forum once the state has initiated criminal proceedings, see Younger v. Harris, 401...